[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87900-87903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27724]



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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 1000, 1003, and 1006

[FR-6431-N-01]


Regulatory and Administrative Requirement Flexibilities Available 
to Native American Programs During CY 2024 and CY 2025 to Tribal 
Grantees To Assist With Recovery and Relief Efforts on Behalf of 
Families Affected by Presidentially Declared Disasters

AGENCY: Office of Assistant Secretary for Public and Indian Housing, 
Department of Housing and Urban Development (HUD).

ACTION: Notification of waivers.

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SUMMARY: This document advises the public of waivers and flexibilities 
from HUD requirements for its Indian Housing Block Grant (IHBG), Indian 
Community Development Block Grant (ICDBG), and Native Hawaiian Housing 
Block Grant (NHHBG) grantees located in areas that are covered by 
Presidentially Declared Disasters (PDDs) declared during Calendar Years 
2024 and 2025. A PDD is a major disaster or emergency declared under 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act 
that activates an array of Federal programs to assist in the response 
and recovery efforts. When they occur, disasters and their aftermath 
impose significant barriers and challenges for housing programs to 
overcome or operate. To provide relief during such challenging times 
for its IHBG, ICDBG, and NHHBG grantees, HUD is publishing this 
standing notification of regulatory and administrative requirement 
flexibilities to assist affected grantees. Instructions are provided 
below on how to apply for flexibilities. A grantee may request a waiver 
or flexibility of a HUD requirement not listed in this document and 
receive an expedited review of the request if the grantee demonstrates 
that the waiver or flexibility is needed to assist its disaster relief 
and recovery efforts.

DATES: This document announces the waivers and flexibilities set out 
within as of January 1, 2024.

FOR FURTHER INFORMATION CONTACT: Hilary Atkin, Office of Native 
American Programs, Office of Public and Indian Housing, U.S. Department 
of Housing and Urban Development, 451 Seventh Street SW, Room 4108, 
Washington, DC 20410-5000, or email <a href="/cdn-cgi/l/email-protection#347c5d5855464d1a771a75405f5d5a745c41501a535b42"><span class="__cf_email__" data-cfemail="1b5372777a69623558355a6f7072755b736e7f357c746d">[email protected]</span></a>, phone 
(202)-402-3427.

SUPPLEMENTARY INFORMATION: This document advises the public of waivers 
and flexibilities from HUD requirements for its Indian Housing Block 
Grant (IHBG), Indian Community Development Block Grant (ICDBG), and 
Native Hawaiian Housing Block Grant (NHHBG) grantees located in areas 
that are covered by Presidentially Declared Disasters (PDDs) declared 
during Calendar Years 2024 and 2025. Please note that the waivers and 
flexibilities in this document do not apply to the various COVID-relief 
related programs administered by the Office of Native American Programs 
(IHBG-CARES, IHBG-ARP, ICDBG-CARES, ICDBG-ARP, and NHHBG-ARP) because 
HUD has issued separate waivers and alternative requirements that apply 
to those programs, as further outlined in the Implementation and Waiver 
Notices governing those programs.

I. Flexibilities That Are Available to PDD Tribes, Tribally Designated 
Housing Entities, and the Department of Hawaiian Home Lands for PDDs 
Declared in CY 2024 and CY 2025

    The following is a list of HUD requirement waivers and 
flexibilities available for IHBG, ICDBG, and NHHBG grantees located 
within PDD areas. Grantees may use any of the waivers and flexibilities 
below to assist their communities in addressing challenges and issues 
that result from a disaster covered by a PDD declared in CY 2024 and 
2025.

A. 24 CFR Part 1000 (IHBG)

1. Total Development Costs (24 CFR 1000.156, 1000.158, 1000.160, and 
1000.162):
    The IHBG regulations at 24 CFR part 1000 require that affordable 
housing under the Native American Housing Assistance and Self-
Determination Act of 1996 (NAHASDA) be of moderate design with a size 
and with amenities consistent with unassisted housing offered for sale 
in the Indian tribe's general geographic area to buyers who are at or 
below the area median income (AMI). To achieve this requirement the 
recipient must either adopt written standards for its affordable 
housing programs that reflect the requirement specified or use total 
development cost (TDC) limits published periodically by HUD that 
establish the maximum amount of funds (from all sources) that the 
recipient may use to develop or acquire/rehabilitate affordable 
housing. The limits provided by the TDC may not, without prior HUD 
approval, exceed by more than 10 percent the TDC maximum cost for the 
project. Non-dwelling structures used to support an affordable housing 
activity must be of a design, size and with features or amenities that 
are reasonable and necessary to accomplish the purpose intended by the 
structures.
    Disasters may result in disruptions to supply chains, lead to labor 
and contractor shortages, and result in overall increases in 
construction costs. Given this possibility of increased costs of 
resources and the urgency to rehabilitate homes following a PDD, HUD is 
waiving the TDC regulatory requirements in 24 CFR 1000.156, 1000.158, 
1000.160, and 1000.162 relating to limitations on cost or design 
standards and TDC with respect to dwelling and non-dwelling units 
developed, acquired, or assisted with IHBG funding. Under this waiver, 
an IHBG recipient may exceed the current TDC maximum by 20 percent 
without HUD review or approval (other than notification by the grantee 
pursuant to the procedures outlined in Section II of this document). 
The recipient, however, must maintain documentation that indicates the 
dwelling units and non-dwelling structures developed, acquired, or 
assisted with this funding will, after the PDD, be for IHBG-eligible 
families and the design, size, and amenities are moderate and 
comparable to housing in the area. The TDC limits can be exceeded by 
more than 20 percent if the recipient receives written approval from 
HUD Headquarters. This waiver applies to both single-family and multi-
family housing, as well as non-dwelling structures.
    2. Income Verification (24 CFR 1000.128):
    24 CFR 1000.128 requires IHBG recipients to verify that a family is 
income eligible. Families are required to provide documentation to 
verify this determination, and a recipient is required to maintain that 
documentation. Families may be required by the IHBG recipient to 
periodically verify income after initial occupancy, and the recipient 
is required to maintain documentation.
    As families may be displaced during a PDD and may not have access 
to their income documentation, HUD is waiving Sec.  1000.128, and 
allowing the following:
    (a) IHBG recipients may deviate from their current written 
admissions and occupancy policies, and may allow less frequent income 
recertifications; and
    (b) IHBG recipients may carry out intake and other tasks necessary 
to verify income through alternative means if the IHBG recipient 
chooses to do so, including allowing income self-certification over the 
phone (with a written record by the IHBG recipient's staff), or through 
an email with a self-certification form signed by a family.

[[Page 87901]]

    3. Assistance to Middle-Income Families Impacted by a Disaster (24 
CFR 1000.104, 1000.106, 1000.108, and 1000.110):
    Generally, Section 201 of NAHASDA and the IHBG regulations at 24 
CFR 1000.104, 1000.106, 1000.108, and 1000.110 require that IHBG 
recipients limit assistance to low-income Native American families, 
with some exceptions for non-low-income families at 80-100 percent AMI, 
families over 100 percent of AMI, and essential families under section 
201(b)(3) of NAHASDA. Section 201(b)(2) and 24 CFR 1000.110 provide 
that an IHBG recipient may aid a non-low-income family upon a 
documented determination by the recipient that there is a need for 
housing for such family that cannot reasonably be met without such 
assistance. 24 CFR 1000.110(c) provides that a recipient may use up to 
10 percent of the amount planned for the Tribal program year for 
families whose income falls within 80 to 100 percent of AMI without HUD 
approval. HUD approval is required if a recipient plans to use more 
than 10 percent of the amount planned for the Tribal program year for 
such assistance or to provide housing for families with income over 100 
percent of AMI. Finally, 24 CFR 1000.110(d) provides that non-low-
income families cannot receive the same benefits provided low-income 
Indian families. The amount of rental assistance, homeownership 
assistance, and other assistance that non-low-income families may 
receive will be determined in accordance with the formula provided in 
that regulation.
    Disasters may devastate and displace Native American families in a 
community of all incomes, make housing uninhabitable, damage community 
infrastructure, and result in a loss of life and property. IHBG 
recipients may find it in the public interest to aid non-low-income 
families that are displaced due to a disaster, including by using IHBG 
funds to provide such assistance as temporary rental assistance to 
otherwise ineligible families in IHBG-assisted housing owned or 
operated by the recipient, housing such families in hotels/motels, and 
similar facilities, providing such families with necessary relocation 
assistance, and more. To help alleviate the impact of PDDs on Tribal 
communities, HUD is waiving 24 CFR 1000.104, 1000.106, 1000.108, and 
1000.110 to the extent necessary to allow for the following 
flexibilities:
    (a) IHBG recipients in areas covered by PDDs may exceed the 10 
percent cap on serving Native American families whose income falls 
within 80 to 100 percent of AMI without HUD approval, provided the 
recipient decides that the families are impacted by the disaster and 
that there is a need for housing for such family that cannot reasonably 
be met without such assistance.
    (b) IHBG recipients in areas covered by PDDs may provide IHBG 
assistance to middle-income Native American families whose income is at 
or below 120 percent of AMI without HUD approval, provided the 
recipient decides that the families are impacted by the disaster and 
that there is a need for housing for such family that cannot reasonably 
be met without such assistance.
    In all cases, assistance to these non-low-income families must 
still comply with limits on assistance specified in 24 CFR 1000.110(d). 
Additionally, all assistance must be temporary in nature. For instance, 
such families may receive temporary rental assistance that is time-
limited pursuant to the recipient's policies but may not receive 
permanent tenant-based rental assistance with no specified end date. 
IHBG recipients must ensure that IHBG assistance provided does not 
result in a duplication of benefits. For example, IHBG recipients 
should not pay for costs that are already covered by private insurance 
or other Federal, State, or Tribal funds or programs. Finally, when 
providing this assistance, IHBG recipients must also maintain records 
documenting that all these criteria were met at the time that such 
assistance was provided.

B. 24 CFR Part 1003 (ICDBG)

    1. Purchasing Equipment (24 CFR 1003.207(b)(1)(i)):
    The purchase of equipment with ICDBG funds is generally ineligible 
under 24 CFR 1003.207(b)(1)(i), with some exceptions. Given the 
immediate need for certain equipment to carry out ICDBG-eligible 
activities related to disaster recovery, such as construction equipment 
necessary for clearance, construction, rehabilitation, and other 
recovery efforts in the aftermath of a PDD, HUD is waiving 24 CFR 
1003.207(b)(1)(i) and authorizing the use of ICDBG funds for the 
purchase of equipment necessary to carry out ICDBG-eligible activities 
that assist with clearance, rehabilitation, construction, and other 
uses related to housing, public facilities, improvements, and works, 
and other disaster-recovery related purposes. Equipment must be used 
for authorized program purposes, and any proceeds from the disposition 
of equipment will be considered ICDBG program income. HUD may issue 
further guidance in the future on the disposition of program income 
after grant closeout.
    2. Emergency Payments for Up to Six Months (24 CFR 1003.207(b)(4)):
    Under 24 CFR 1003.207(b)(4), the general rule is that ICDBG funds 
may not be used for income payments. For purposes of the ICDBG program, 
income payments mean a series of subsistence-type grant payments made 
to an individual or family for items such as food, clothing, housing 
(rent or mortgage), or utilities. However, ICDBG may be used to make 
emergency payments over a period of up to three months to the provider 
of such items or services on behalf of an individual or family.
    Low- and moderate-income families impacted by disasters may have an 
immediate need for short-term rental assistance, mortgage assistance, 
utility assistance, food, clothing, and similar services.
    To provide additional relief to families impacted by disasters, HUD 
is waiving 24 CFR 1003.207(b)(4) to the extent necessary to allow ICDBG 
grant funds to be used to provide emergency payments for low- and 
moderate-income individuals or families impacted by a PDD. These grant 
funds may be used for items such as food, medicine, clothing, and other 
necessities, as well as rental, mortgage, and utility assistance, 
without regard for the three-month limitation in 24 CFR 1003.207(b)(4), 
but for a period not to exceed six months, unless further approved in 
writing by HUD on a case-by-case basis.
    ICDBG grantees may establish lines of credit with third party 
providers (e.g., grocery stores) on behalf of specific beneficiary 
families, provided all expenses can be properly documented and all 
ICDBG funds used for this purpose are expended on eligible activities. 
In all cases, ICDBG grantees must ensure that proper documentation is 
maintained to ensure that all costs incurred are eligible. ICDBG 
grantees using this waiver flexibility must document, in their policies 
and procedures, how they will determine the necessary and reasonable 
amount of assistance to be provided.

C. 24 CFR Part 1006 (NHHBG)

    1. Assistance to Middle-Income Families Impacted by Disaster (24 
CFR 1006.301(a)):
    24 CFR 1006.301(a) describes families eligible for NHHBG assistance 
as low-income Native Hawaiian families who are eligible to reside on 
the Hawaiian homelands. Section 809(a)(2) of NAHASDA limits assistance 
for families who are not low-income to homeownership activities, as 
approved

[[Page 87902]]

by HUD, to address a housing need that cannot be reasonably met without 
that assistance. Section 1006.301(d) requires the Department of 
Hawaiian Home Lands (DHHL) to have written policies governing 
eligibility, admission, and occupancy of families for NHHBG-assisted 
housing.
    Disasters may devastate and displace Native Hawaiian families in a 
community of all incomes, make housing uninhabitable, damage community 
infrastructure, and result in loss of life and property. DHHL may find 
it in the public interest to aid non-low-income families that are 
displaced due to a disaster by using NHHBG funds to provide such 
assistance as temporary mortgage assistance, temporary rental 
assistance on or off the Hawaiian home lands, housing such families in 
hotels, motels, or similar facilities, providing such families with 
necessary relocation assistance, and more. To help alleviate the impact 
of PDD on Native Hawaiian communities, HUD is waiving 24 CFR 
1006.301(a) to allow DHHL more flexibility to provide NHHBG assistance 
to families that are middle income (defined as 120 percent of AMI), 
provided the assistance is for homeownership activities (which may 
include short-term rental assistance to displaced homeowners), is 
temporary in nature, and DHHL determines that the families are impacted 
by the disaster and that there is a need for housing for such family 
that cannot reasonably be met without such assistance.
    Under this waiver, Native Hawaiian families impacted by PDD can 
automatically be served provided their household income does not exceed 
120 percent of AMI, there is no duplication of benefits, and all 
eligible criteria in this waiver are met. All assistance must be 
temporary in nature. For instance, such families may receive temporary 
rental assistance that is time-limited pursuant to DHHL's policies but 
may not receive permanent tenant-based rental assistance with no 
specified end date. DHHL must ensure that NHHBG assistance provided 
does not result in a duplication of benefits. For example, DHHL should 
not pay for costs that are already covered by private insurance or 
other Federal or State funds or programs. Further, when providing this 
assistance, DHHL must maintain records documenting that all these 
criteria were met at the time that such assistance was provided. HUD 
encourages DHHL to update its written policies to allow middle-income 
Native Hawaiian families who are impacted by disasters covered by a PDD 
to be considered eligible for NHHBG homeownership assistance and 
include a definition for `temporary' assistance.
    2. Income Verification (24 CFR 1006.320):
    24 CFR 1006.320 requires DHHL to have written policies regarding 
tenant and homebuyer selection and criteria related to eligibility for 
NHHBG assistance. Many families whose homes were damaged or destroyed 
by the disaster may not have any documentation of income. DHHL may 
modify its policy and procedures to streamline any income verification 
and documentation requirements for families impacted by PDDs. This may 
include allowing income self-certification over the phone (with a 
written record by the DHHL's staff), or through an email with a self-
certification form signed by a family. This waiver applies only to 
families impacted by PDDs whose income documentation was destroyed or 
made difficult to access by the disaster.

II. Instructions

    To use the waivers or flexibilities, grantees must provide 
notification in writing, preferably by email, to the Administrator in 
the Office of Native American Programs (ONAP) Area Office serving their 
area before the grantee anticipates using the waiver or flexibility. 
Grantees can find their ONAP office at https://www.hud.gov/program_offices/public_indian_housing/ih/codetalk/onap/map/nationalmap. 
The written notification should include the following details:
    <bullet> Requestor's Tribe/Tribally Designated Housing Entity 
(TDHE)/DHHL, name, title, and contact information.
    <bullet> Presidentially declared major disaster area(s) where the 
waivers will be used.
    <bullet> Date on which the grantee anticipates the first use of the 
waiver or flexibility, and its expected duration (which must include a 
specific end date), and
    <bullet> A list of the waivers and flexibilities the grantee will 
use.

III. Exceptions

    An IHBG, ICDBG, or NHHBG grantee in a PDD may request an exception 
of a HUD requirement not listed in Section I of this document. HUD will 
only consider such exception requests subject to statutory limitations 
and pursuant to 24 CFR 5.110. HUD will not approve a recipient's 
request to waive or be granted a flexibility for an existing fair 
housing or civil rights obligation.

IV. Period of Use for Waivers and Flexibilities

    Waivers and flexibilities provided in this document will remain 
available to grantees provided a grantee is using the waivers or 
flexibilities in response to a PDD declared in CY 2024 or 2025 or as 
part of the recovery process effort for such PDD. HUD recommends that 
grantees clearly document the need for each waiver and flexibility in 
their records and ensure that a specific time period for which the 
grantee will use the waivers and flexibilities that the grantee 
specifies in its written notification to HUD, described in Section II 
of this document, is reasonably set and ties back to the response and 
recovery effort. If a grantee finds a need to extend the period for 
which it will use a waiver or flexibility beyond the end date initially 
set by the grantee in its initial written notification to aid in its 
ongoing recovery effort, the grantee should send HUD written 
notification of its intent to extend the end date. The request must 
also demonstrate to HUD's satisfaction that the new time period is 
reasonably set and ties back to the response and recovery effort.

V. Finding of No Significant Impact

    A Finding of No Significant Impact (FONSI) with respect to the 
environment has been made in accordance with HUD regulations at 24 CFR 
part 50, which implement section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).
    The FONSI is available for public inspection between 8 a.m. and 5 
p.m. Eastern Time weekdays in the Regulations Division, Office of 
General Counsel, U.S. Department of Housing and Urban Development, 451 
7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security 
measures at the HUD Headquarters building, an advance appointment to 
review the docket file must be scheduled by calling the Regulations 
Division at 202-708-3055 (this is not a toll-free number). HUD welcomes 
and is prepared to receive calls from individuals who are deaf or hard 
of hearing, or who have speech and other communication disabilities may 
use a relay service to reach the Regulations Division. To learn more 
about how to make an accessible telephone call, visit the web page for 
Federal Communications Commission at https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

[[Page 87903]]

VI. Paperwork Reduction Act

    The information collections referenced in this document have been 
approved by OMB pursuant to the Paperwork Reduction Act under, OMB 
Control Number 2577-0292.

Richard J. Monocchio,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2023-27724 Filed 12-19-23; 8:45 am]
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